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Appeal No. 44‑R of 1978, decided on 12th December 197 .

(On appeal from the judgment and order of the Lahore High Court in Cr. Misc. No. 1360/B of 1978).

‑‑ S. 497 (2)‑Bail‑Further inquiry‑Complaint filed by opposite‑party coming up before Magistrate after about a month of incident and delay sought to be explained by fact of police having refused to register case at complainant's instance‑Medical report on injury of petitioner and his father showing their having been examined on night of incident and petitioner's father shown having received a grievous injury from fire‑arm‑Case, on such facts, held, not a case of counter version having been put across by petitioner's father for purpose of obtaining bail but allegations made by him founded on some basis‑Sessions Judge, in circumstances, held further, not wrong in allowing bail to petitioner on ground of counter version put forward by him and his father indicating need for further inquiry.‑[Inquiry].

Atta‑ur‑Rehman, Advocate Supreme Court for Petitioner.

Asif Jan, Assistant Advocate‑General (Punjab) with Sh. Ijaz Ali, Advocate‑on‑Record for the State.

Date of hearing : 7th December, 1978.

‑After hearing the learned counsel for the parties we have decided to convert this petition into an appeal and to dispose of accordingly.

At about 7 or 8 p.m. on the 8th of June, 1977, a quarrel took place between the petitioner Khalil‑ur‑Rehman and his father Rehmat on the one hand, and the complainant Muhammad Ishaq and his companions on the other hand, which resulted in injuries to Abdur Rehman deceased, who expired on the 19th of June, 1977. The First Information Report was made at Police Station, Okara by Muhammad Ishaq at 0‑35 a.m. during the same night. It is alleged that the petitioner's father Rehmat Khan also tried to lodge a counter report, but it was not registered by the police, with the result that he filed a private complaint on the 7th of July, 1977, against Muhammad Ishaq, Babu Muhammad Sharif, Jalal, Abdur Rehman deceased, Syed Usman Ali Shah and Faiz Ahmad, and in that complaint the accused persons were summoned by a Magistrate of the First Class by his order dated 28th of November, 1977.

By an order made on the 29th of January, 1978, the learned Additional Sessions Judge, Sahiwal, allowed bail to the petitioner, primarily on the ground that there was a counter version of the incident, in which the pro secution witnesses had been summoned as accused persons, on the basis of evidence that the petitioner Khalilur Rehman and his father Rehmat had sustained injuries at the hands of the complainant party, and that the injury sustained by the petitioner's father was a pellet injury on the back which had fractured one of the ribs, However, this order has been set aside by a learned Judge of the High Court on the 30th of May, 1978, and the bail allowed by the learned Additional Sessions Judge had been cancelled, on the observation that the counter complaint was filed by the petitioner's father Rehmat Khan after about five months of the incident, and that, in any case, the mere filing of a counter complaint would not entitle an accused person to the concession of bail.

'It is contended by the learned counsel for the petitioner that the learned Judge in the High Court has fallen in error in thinking that the complaint filed by the petitioner's father was delayed by five months as, in fact, Rehmat Khan and the petitioner had got themselves medically examined the same night, and their private complaint was filed on the 6th of July, 1977, and not in November, 1977. He also submits that while it is true that the mere filing of a counter complaint would not entitle an accused person to the grant of bail, but in the peculiar circumstances of the present case the counter version was supported by the injuries found on the person of the petitioner and his father, thus showing that the party of the deceased Abdur Rehman were the aggressors.

After persuing the record, we are of the view that the learned Judge in the High Court was not right in thinking that the petitioner's father had delayed filing his counter complaint for a period of five months, as, in fact, the complaint filed by Rehmat Khan came up before the learned Magistrate o the 7th of July, 1977, I.e. after about a month of the incident, and the delay was sought to be explained by the fact that the police had refused to register the case at Rehmat Khan's instance. The medical report on the injury of the petitioner and his father shows that they were examined by Dr. Muhammad Athar at 11‑15 p.m. on the night of the incident, and that the petitioners father had sustained one grievous injury from a fire‑arm. These facts would show that it is not just a case of a counter version having been put across by the petitioner's father for the purpose of obtaining bail, but that there was some foundation for the allegations made by him. This being the case, the learned Additional Sessions Judge was not wrong in allowing bail to the petitioner on the ground that the counter version put forward by him and his father indicated that there was need for further inquiry within the meaning of subsection (2) of section 497 of the Criminal Procedure Code. This being the case, the learned Judge in the High Court was not justified in interfering with the discretion exercised by the Sessions Court.

As a result we would accept this appeal, set aside the order made by the High Court on the 30th of May, 1978, and restore that of the learned Additional Sessions Judge dated the 29th of January, 1978. If the petitioner has already furnished bail in accordance with that order, then he need not furnish fresh bail bonds. If he has not already done so, then he shall now furnish security in the sum of Rs. 20,000 (Rupees twenty thousand) with one surety in the like amount to the satisfaction of the Assistant Com missioner/Deputy Magistrate of Okara as already directed by the Additional Sessions Judge, Sahiwal.

Appeal allowed.

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